File an Appeal

Updated: 
September 21, 2021

What is an appeal?

An appeal is the legal process to ask a higher court to review a decision by a judge in a lower court (trial court) because you believe the judge made a mistake. A litigant who files an appeal is called an appellant. A litigant against whom the appeal is filed is called an appellee. The higher court, which may be called a court of appeals, appellate court, or supreme court, looks at the “record,” which includes the transcript, evidence, and documents from the trial court, and decides if the judge made certain mistakes that must be corrected.

Keep in mind:

  • You can only file an appeal after there has been a final ruling in your case, although there are some exceptions to this rule. In certain circumstances, you may file an “interlocutory appeal” to appeal the judge’s decision on an issue during an ongoing court case.
  • Pursuing an appeal does not stop the court order that you are appealing from going into effect; the order goes into effect immediately and must be followed during the entire appeal process unless you file a Motion to Stay and a “stay” is granted. See What is a motion to stay? How does it affect the order I am appealing? for more information.
  • You cannot introduce new evidence when you appeal your case to a higher court. The higher court only looks at what was said and done in the trial court.

What are some important words and phrases that I need to know as I start the appeals process?

Below we give the definitions to some key words and phrases that you will need to understand if you begin the appeals process. As you read the rest of this section, you may want to refer back to this question if you come across an unfamiliar word.

Appeal: The process of asking a higher court to review a trial court decision for possible mistakes.

Appellant: The party (litigant) who files an appeal seeking to reverse (overturn) the trial court’s decision.

Appellee: The party (litigant) who won in the trial court, also known as the lower court, and will be defending that decision in the appellate court.

Brief: Document filed in the appellate court that states the litigant’s legal reasons (arguments) for why the appeal should be granted or not granted. The appellant is allowed to file two briefs, the appellee only files one:

  • First, the appellant files an opening brief arguing that the trial court made mistakes that the appeals court should correct;
  • Second, the appellee files a brief responding to the appellant’s arguments and explaining why the trial court’s decision was correct and should be kept (“affirmed”) by the appeals court; and
  • Third, the appellant can file a “reply” brief that responds to the counter-arguments in appellee’s brief.

Case law: Law formed by judges’ decisions in other court cases in your state. Generally, case law that comes from a court that is higher than your appellate court is called “precedent” and the judges in your appellate court are supposed to follow those rulings when making their decision related to similar facts. In larger states with multiple appellate courts, it’s possible that case law will come from other courts that are not above your court – in this case, it’s optional if the judges want to follow it or not but it could help to influence their decision.

Filing Fee: Fee an appellant must pay to the appeals court when filing an appeal, typically between $100-$250.

Notice of Appeal: The document filed by the appellant to start the appeals process.

Record: All the documents contained in the trial court’s file connected to the litigation plus the written transcripts and trial exhibits.

Remand: The most common outcome of an appeal. It’s when appeals court agrees that the trial court made an error and sends the case back to the trial court to re-try the case with guidance on what to do differently to avoid making a similar appealable error.

Stay: A pause that prevents the lower court’s order from going into effect until the appeal is decided.

Transcript: The written recording of the trial ,often prepared by the court reporter.

What should I consider when deciding whether or not to file an appeal?

When considering whether filing an appeal is the right option for you, you will want to consider the following things:

  • Time: An appeal can take up to a year or more from start to finish.
  • Expense: Appeals are very difficult to do without a lawyer and hiring an appellate attorney can be extremely expensive. (If you are a victim of domestic violence, you may be eligible for pro bono (free) appellate representation from DV LEAP). Aside from the cost of an attorney, there will be a filing fee that is often between $100-$250. Also, you will probably need to pay for the written transcripts from the final trial in the lower court, which can be quite costly. Some states will waive the filing fees and transcript fees if you are low income, but many states do not offer this.
  • Outcome: Even if you “win” on appeal, which is very difficult, the most likely outcome will be another trial, called a “remand.” This is where the appellate court instructs the trial court judge to fix the mistakes that the appellate court decided the trial court judge made. You may have to re-litigate one part or all of the trial again in the lower court and it does not necessarily mean that you will win the case – the trial court judge could still rule in favor of the other party. There is also a good chance you will be back in front of the same trial judge whose order you appealed.
  • Emotional toll and safety concerns: If the other party is your abusive partner, it’s important to know that the appeals process is very long, which will drag out the conflict between you and the abuser and will create an extended time of uncertainty in your life. In addition, filing an appeal may anger the abuser, which could lead to additional abuse.

The good news, however, is that an appeal is decided only based on the written evidence and exhibits filed in court. Therefore, you will not have to testify or go through another trial at the appellate court. In addition, there is the potential that the court’s ruling on your appeal will change or strengthen the law to help others in similar situations.

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